Last week the Office of the Special Counsel publicly recommended that White House counselor Kellyanne Conway be fired for repeatedly violating the Hatch Act, prompting many people to Google what the Hatch Act is (it’s a law that bars federal employees from engaging in political activity in the course of their work) and President Trump to give an interview to Fox News where he stated that, “[I]t looks to me like they’re trying to take away her right of free speech, and that’s not just fair.” (This week, the president tweeted his support for a proposed constitutional amendment to outlaw burning the American flag — an act the Supreme Court has repeatedly held to be a protected form of political expression — thus ending his streak as a First Amendment advocate.)
But back to the Hatch Act for a moment. It was passed in 1939 to prevent federal employees from engaging in partisan political activities, such as endorsing or opposing particular political candidates. It’s grounded in a noble purpose: to protect federal employees from political coercion and ensure their advancement is based on merit and not political affiliation. To that end, federal employees can’t engage in political activity while they’re on duty, in the workplace, or speaking in their official capacity. The letter from the Office of the Special Counsel (OSC) pointed out that much of Conway’s recent conduct has fallen into that category, as she’s been making the rounds, “disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”
White House counsel Pat Cipollone responded with a letter stating, among other things, that applying the Hatch Act to political activity on social media “has a chilling effect on all federal employees whose fundamental First Amendment right to engage in political and public policy discussions should not be compromised based solely on OSC’s guidance.”
This isn’t the first time the OSC has faced that accusation. Ethics and transparency advocates said more or less the same thing last year, when the agency issued new guidelines that federal employees weighing in on President Trump’s prospects for impeachment or talking about “the Resistance” might constitute political activity. National Treasury Employees Union President Tony Reardon’s exact words were, “This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ First Amendment free speech.”
The “chilling effect” is a concept that comes up a lot when we talk about the First Amendment. Essentially, it means that when a law concerning expression is too vague or too broad, people won’t know exactly when their speech crosses the line and violates it. So, in order to avoid punishment, they’ll avoid speaking at all — a major loss for free expression and healthy public debate.
Practically speaking, this isn’t really a concern when it comes to Kellyanne Conway specifically. President Trump has explicitly stated he will not fire her (the OSC only has the authority to recommend that he do so). She has publicly scoffed at the Hatch Act charges, telling reporters, “Let me know when the jail sentence starts.” She continues to appear in public, making it abundantly clear that nothing will get her to chill.
But it’s worth taking a moment to reflect on the impact that laws like this have on other federal employees, most of whom aren’t as protected from consequences as Conway. Henry Kerner, who heads up the OSC, was certainly thinking about this when he recommended that Conway be fired. “In interview after interview, she uses her official capacity to disparage announced candidates, which is not allowed,” he said in an interview with The Washington Post. “What kind of example does that send to the federal workforce? If you’re high enough up in the White House, you can break the law, but if you’re a postal carrier or a regular federal worker, you lose your job?”
It’s a reminder that most government employees have severe restrictions on their First Amendment rights. Some of these restrictions are justified — government offices wouldn’t be able to function if they couldn’t discipline employees for speech that interferes with their duties. But there are plenty of examples of this censorship going too far.
Just look at the impact of the 2006 Supreme Court decision Garcetti v. Ceballos, which removed any First Amendment protection for speech that government employees make in the course of their duties. Since then, we’ve seen numerous cases where government employees have been fired for reporting the misconduct of others and whistleblowing about corruption and mismanagement, with no valid free speech claims at all.
Or think about the times when government entities have decided that their employees’ private conduct on social media impacts their official duties — like the incident where a Pennsylvania public school teacher was suspended without pay because someone posted a photo of her with a male stripper to Facebook. Or think of the postal carriers and regular federal workers who avoid political activity altogether because they’re anxious about running afoul of the Hatch Act.
Here’s hoping that the White House continues championing free speech rights for government employees — it’d be a nice change from prosecuting them for leaking information to the press and accusing them of treason.